April 12, 2006

Said Justice Scalia, referring to the demands that he recuse himself in a case that involved Dick Cheney because he had gone on a vacation with him. I agree with him about recusal, but I'd like to examine this additional remark:

"For Pete's sake, if you can't trust your Supreme Court justice more than that, get a life."

"Get a life" is not an Italian hand gesture, it's an American idiomatic expression, so we speakers of contemporary American English have some expertise here. Isn't "Get a life" a tad rude? Or are you going to say "Get a life" to me for asking?

Anyway, these comments took place at the University of Connecticut Law School, where some students felt the need to protest:

Some gay rights activists set up a same-sex kissing booth outside the lecture hall. They said they believe some of Scalia's opinions amount to attacks on gays, women and other minorities.

"His visit opened a lot of conversation on this campus," said third-year law student Colby Smith, who was wearing an "I Kiss Boys" T-shirt. "We want to make sure people understand what the concerns are with him, and why his views are particularly offensive."

I tend to think that if he were asked he'd say that in his role as a judge he's happy to concede for the sake of argument that boys kissing boys eliminates social tensions and ought to be encouraged.

It is blindingly clear judges have no greater capacity than the rest of us to determine what is moral.

(maybe he's letting his guard down some now that he has no hope whatsoever of becoming Chief Justice, he's that employee in a bureaucratic type workplace that has been promoted to the top rank that his position will allow, has moutains of work rules preventing him from being fired for anything short of a serious felony, and enjoys pissing other people off)

He's still a thoughtful jurist, with a lively mind and a clear ability to do his job, rude I can live with.

I'd really like to see SCOTUS reform its recusal practice...wouldn't it be neat if they appointed a special master to opine on recusal questions, and made it a practice to defer to the master's decision, in the main?

I'm not saying that I necessarily am that supsicious of this particular case and Scalia -- I'd just prefer that someone other than the foxes be guarding the henhouse.

Doesn't "get a life" in this context mean: "If you were engaged in matters of importance, this issue would be a meaningless triviality"? I did not think Scalia needed to recuse himself, but I think reasonable people could fairly be suspicious of whether a jurist who pals around with one who has a vital interest in pending litigation can exercise the appropriate degree of objectivity. It was inappropriately rude.

I just read Romer v. Evans for my Con Law II class; I hadn't read it in a while. Though I disagree with him on, well, just about everything, I usually find his opinions well-written andwell-organized. However, his dissent in Romer v. Evans is little more than a collection of paranoid, ad hominem attacks on homosexuals. Comparing them to polygamists? Warning of gay rule in Colorado's cities? These are just a few of the bizarre, paradoid statements included in that opinion. This country will be a better place when he is no longer on the court.

I think it's quite obvious through any casual readings of Scalia's opinions that he thinks gay people are complete scum and are not worthy of any respect.

Heck - he can't even refer to us as "gay". He has to refer to us as "homosexuals" as if we were suffering from some disease.

Scalia might think he is acting in a neutral manner, but just substitute "Christian" for "gay" in any of the gay rights cases he has decided, and his opinion would have been decided the other way in most cases.

Personally, I think Scalia made a serious mistake vis-a-vis recusal that term. Not in Cheney, of course - I continue to believe that he was wrong to recuse himself from Elk Grove; see Scalia, recusal and Hamdan, 3/30/06.

I really had no idea that "homosexual" was no longer acceptable as a reference. That's hyper, hyper, hyper PC that I'm rather shocked at, as almost every term of reference has been claimed as offensive at some point and "homosexual" tends to be the most formal and academic (outside of queer-studies and similar fields) term of art.

I can't really see any other term of art being appropriate in any judicial context. Queer, fag, gay... tend to be both somewhat insulting (at least in their past usage and in usage by non-group members) and overly casual.

Complaining about this usage seems to put you outside the realm of normal discourse.

"Complaining about this usage seems to put you outside the realm of normal discourse."

If only that were the ONLY thing that put him outside the realm of normal discourse...

downtownlad said...But he doesn't give a damn about other people's rights."

Oh, do shut the fuck up. Are you ever going to contribute anything worthwhile, or are you going to keep making obnoxious slanders on someone who accomplishes more before breakfast than you have in the combined total of your posts here?

Scalia cares deeply about enforcing those rights that are actually protected by the constitution. There are several, but there is no right to bugger your fellow man in the constitution, and if you want such a protection, pass a damned amendment, or start with finding enough people to pass a law. You need to grow the hell up and stop being such an inveterate child. Here, have some cheese - it'll go nicely with your whine.

In any event, I would think that opening of letters would be covered by the actual right "to be secure in their . . . papers," not any nebulous and generic "right to privacy."

"Many gay people prefer the term 'gay' to 'homosexual'. The word homosexual means someone who is attracted to people of the same gender. But the focus of the word homosexual is on sex. The word gay talks about the whole person, not just what kind of sex partners he has.

People in the LGBT community usually use the term gay. However people who are homophobic are more likely to use the word 'homosexual.' Homophobic literally means people who are afraid of homosexuals. Some homophobic people may fear LGBT people. But usually they hate instead of fear.

Homosexual also comes from a time when people thought gay people had a mental illness. So homosexual sounds more like a diagnosis instead of just a difference, like being left-handed."

What "right to purchase internet wine"? Are you referring to Granholm v. Heald? That case had nothing to do with a "right to buy wine"; the question was the interaction of the commerce clause vs. the twenty-first amendment. Scalia, moreover, wrote not a word in that case; I can only presume you're confusing him with Justice Thomas, who wrote a dissent.

I refuse to get drawn into another tedious and circular argument about the meaning of the ninth amendment. You have your interpretation, I have (and have repeatedly put forward here) mine, and I'm really not in the mood to get into an argument about it.

dtl: I'd agree that, in a certain tone of voice, calling someone homosexual can seem hostile, but the same can be said of "gay", or pretty much any moniker you want to pick. In fact, among most of society, I think gay is the more likely slur.

I think its totally legitimate to object to Bush's postions and policies with regard to gay people, or to Scalia's. But I think there use of "homosexual" has more to do with the language of public discourse (outside of feminism and queer theory) than it has to do with a special expression of prejudice. If I was publishing in a journal, I'd probably be more likely to use the term homosexual than gay, because its more formal.

Of course, I freaking HATE the word homosexual, but mainly because it is a linguistic bastard, being derived from a mush of greek (homo) and latin (sexual).

And dtl, you need to familiarize yourself more with the breadth of Scalia's jurisprudence before you paint with such a broad brush. He's decided a fair number of cases in ways more rights protective than justices considered to the "left" of him. Others, he hasn't. I personally find the tone of some of his sexual orientation opinions to be a bit mean, so I agree with you there...but you need to realize that it is in fact possible for a Justice to both sympathize with a cause, but feel that it isn't protected by the constitution.

Simon: I think you could also do with a deep breath or two. There is no right to bugger your fellow man in the constitution... That is an ugly characterization, and I find it offensive. It intentionally associates loving relationships between gay people with pederasty and bestiality. Let's try to maintain a better tone than that, huh?

Both: I think there is little doubt that the postal service can't open domestic mail -- that would be state action, and a warrantless search. The harder case is international mail, which is often thought to fall within a "border search" exception to the fourth amendment. In point of fact, I believe that the Dept. of Homeland Security has actually been opening people's mail, at least the international mail. I don't think DHS is obtaining warrants for this...

Simon, any thoughts on how this practice would square with an original understanding of the Warrants Clause?

DTL: if you are looking for protection of gay rights, I think the equal protection clause is a better place to find them than is the 9th Am (or the P or I clause of the 14th) for both textual and historical reasons.

I even know a few dyed-in-the-wool originalists who think that the EP clause, properly read, protects gay people.

Your post is really offensive. The use of that sort of language is totally uncalled for and inappropriate. I realize that this isn't my blog, but just as a member of the community that regularly comments on here, I think you stepped way over the line.

I think that your gay/homosecual thing is misplaced. While Wikipedia may make an important distinction here, it is, at this level, a political document. Gay, to me, is like using African-American, Black, and then the series of "N" words to refer to someone of the Negroid race. Ditto for "East Asian" to refer to people of the Oriental race, "White" for the rest of us. Tomorrow, the politically correct terms will be different, while the concepts stay the same.

And then there is the problem of determining whether or not "Gay" does or does not include Lesbians, Transexuals, Pedophiles, etc. Sometimes it does, and sometimes it doesn't, depending on the situation.

What we are calling "Gay Marriage" is better described and analyzed as homosexual marriage because it isn't about whether only adult male homosexuals can marry, but whether any two people of the same sex can. "Homosexual Marriage" is unambiguous, whereas "Gay Marriage" is not.

Yes, using the term "homosexual" may be politically incorrect. But in the case of a court decision, it is more accurate and less ambiguous than if the Justice had used the term "gay".

Plus, Supreme Court decisions are intended to be read and utilized for generations. When I was growing up, homosexuals were called "queers" and African-Americans called Negros (or worse). Imagine reading court decisions about "queers" today. The term "homosexual" is going to withstand the test of time better than the term "gay" would.

I quite agree with Marghlar that the word "homosexual" is offensive purely for logical, linguistic, and aesthetic reasons, as is the word "heterosexual". But I also find the word "gay" (when used to connote homosexuality) just as offensive, for similar reasons. I prefer people to refer to me by my name, rather than by a largely artificial designation based on the gender of my romantic and sexual partners. I understand the occasional need for such designations, but it's certainly not something to get the vapors over. Downtownlad is just being his usual drama queen self, trying to use a pretend offense to express his dislike for Justice Scalia. While it's certainly most acceptable to disagree with Scalia's moral views (as well as his legal opinions), there are ways express that disagreement that don't involve emotionalist hysteria and that aren't fundamentally dishonest.

And Simon, you crossed the same line in lashing out in response. Basely characterizing the complicated human issues in question as being about the "right to bugger your fellow man" is offensive, crude and brainless, all at the same time. You can do better.

And, back on the general topic, the [gays/homosexuals/queers/faggots/inverts] (pick your own inoffensive descriptive noun) that were protesting at UConn could have done better as well. "I Kiss Boys"? A "same sex kissing booth"? Are we in junior high school? Is this the level of discourse going on at colleges these days? Can anyone actually have a dignified, serious protest without the careworn Brechtian agitprop ironic street theater garbage? Grow up. You're giving us [gays/homosexuals/queers/faggots/inverts] a bad name.

And by the way downtownlad, you linked to the "simple English" version of Wikipedia, which is basically meant for children, the semi-literate, and ESL readers. Try the regular Wikipedia entry on the word "gay" and you'll find a much more nuanced article written for adults, though it probably won't make your child-like point as well. Interestingly, you'll also find that the usage of the word "gay" to connote homosexuality may have had its origin in reference to prostitution. Pretty offensive wouldn't you say?

Hasn't this gay/homosexual thing played out on althouse already? Wasn't the agreement that homosexual was used in law because it is unlikely to be misinterpreted (as, perhaps, gay) as word meanings change with time. Imagine a legal document written regarding homosexuals in the 1940s that used the term 'gay' -- what would that term really mean?

I agree with whomever said that Scalia's choice for a proudest moment seems, well, oddly confrontational. I suppose it's just hyperbole though. I also don't understand why he vacationed with Cheney either, but most of my vacations are with family, and I don't hunt, so maybe my context is wacky.

Live long, Tony Ducks! Live hearty! Now that's what I would call a street urchin slap. There's a bitch slap and then there's a street urchin slap. Some might say this was a nipping-at-the-heels little yard-dog kick, but there are fine distinctions often ignored by the casual observor in these matters.

I think "homosexual" is used in legal writing instead of "gay" because "gay" is perceived as slang. If "heterosexual" is used, the corresponding word is "homosexual." You want legal cases talking about "gay" and "straight" individuals? That would be very strange. I haven't checked, but I would guess all the justices use the more formal term. Making an issue of the word "homosexual" here is just inventing evidence of hostility. If that's all you've got, give up.

Marghlar said...Simon, any thoughts on how this practice [the warrantless opening of international mail under the border search exception] would square with an original understanding of the Warrants Clause?

I've not thought too deeply about the subject; it seems to me that the late Chief Justice said all that needed to be said - on this very question, in fact - in UNITED STATES v. RAMSEY, 431 U.S. 606 (1977). That opinion boils down to the statement "[t]hat searches made at the border [or its functional equivalent], pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration," id. at 616.

Geoduck said..."Scalia seems to have a problem making statements or such that raise questions about his need to recuse. The other justices do not seem to have these issues."

I think that characterization is misleading. Scalia seems to have a problem wherein he is ASKED to recuse as a result of statements he has made, while the other justices (those who speak comparably often) are not asked to recuse. Why aren't the asked? Because the people who are asking Scalia to recuse himself usually anticipate, say, Justice Breyer to vote their way. As the article Ann linked to a few weeks ago pointed out, recusal has become the new strategy; if they couldn't stop Alito from getting onto the court, maybe they can at least nullify his effect by seeking to take Scalia out of play.

It is for precisely this reason that he was wrong to recuse himself in Elk Grove and right to refuse to recuse in Cheney: it only encourages this inane and dangerous practise.

Bruce said:"Supreme Court decisions are intended to be read and utilized for generations. When I was growing up, homosexuals were called "queers" and African-Americans called Negros (or worse). Imagine reading court decisions about "queers" today. The term "homosexual" is going to withstand the test of time better than the term "gay" would."

Indeed. consider how jarring it is to read opinions from before about 1971, in which one finds the word "negro" littered about the place. A more neutral, descriptive term such as "african american" might seem less shocking. Likewise, as others have pointed out, "homosexual" is a neutral term that encompasses all the Ls, Bs and Gs (I reject, incidentally, the inclusion of "T" in that list). I think it would set a terrible precedent to abandon a word that serves a valid purpose merely because some homophobes use the term and in reaction, some homosexuals have developed a persecution complex about it, assuming that because it is the adjective of choice for some homophobes, that must mean that all who use it use it for that purpose.

PalladianAnd Simon, you crossed the same line in lashing out in response.That's probably true and fair. I'm just sick of his attitude, persecution complex and repeated bleating. However, perhaps I should apologize in the Cynthia McKinney manner: I'll say I regret that the altercation took place, while leaving hanging the inference that an altercation takes two to tango. ;)

However, I would note that I think you're being overbroad in saying that I am "characterizing the complicated human issues in question as being about the 'right to bugger your fellow man'"; was the law at issue in Lawrence v. Texas a law against "the complicated human issues" of relationships and sexuality, or was it a prohibition upon certain actions? Those who championed the court's result were basically asking for the court to say that the law was invalid because the constitution protected the prohibited conduct. Which amounts to an assertion that the prohibited conduct is protected by the constitution was...What? Hint: 539 U.S. at 563. Lawrence and Garner were not arrested when "the police observed them engaging in a philosophical inquiry as to their "own concept of existence, of meaning, of the universe, [or] of the mystery of human life." What were they arrested for? What was it that the Texas penal code criminalized which the Lawrence court said violated the constitution? I respectfully submit that it was specific conduct, not a broad generality about "complicated human issues."

MadisonMan:"I also don't understand why he vacationed with Cheney either, but most of my vacations are with family, and I don't hunt, so maybe my context is wacky."

I agree with everything in your post except that quoted above. I don't think it takes a great deal of empathy to understand: Scalia and Cheney are very likely to be part of the same social circle, they have a common interest (duck hunting) and probably don't hate each other. Per Scalia's memo in that case, Scalia was going on a hunting trip with various other people (it's important to keep in mind, the image of Scalia and Cheney on a two-man hunting expedition is wrong), and the person who was hosting that trip mentioned that they were a fan of Cheney. It seems perfectly natural that Scalia would say to himself, "well, I know Dick, I have his telephone number, I could probably stand his company for a few days, and I know he likes shooting up some wildlife, so maybe - since my host is a fan of Dick's - maybe I should invite Dick along?" I mean, is that sort of chain of logic really so hard to imagine?

Imagine this scenario: I am not to proud to say that I'm a fan of Scalia's; say I was best buddies with John Hostettler, and say John and Nino happen to play tennis together, or they're both members of the same gold club, I don't know. Most of my friends know that I'm rather fond of Scalia, so if I were hosting a hunting trip on my ranch, I don't think it would be entirely too bizarre for John to say to himself, "well, Simon's a big fan of Nino's, and Nino does like to hunt, so you know what, maybe when I see Nino at the club this week I should ask him if he wants to come along."

I think "homosexual" is used in legal writing instead of "gay" because "gay" is perceived as slang. If "heterosexual" is used, the corresponding word is "homosexual." You want legal cases talking about "gay" and "straight" individuals? That would be very strange. I haven't checked, but I would guess all the justices use the more formal term. Making an issue of the word "homosexual" here is just inventing evidence of hostility. If that's all you've got, give up.

Exactly it is perfectly proper for a Supreme Court justice when writing an opinion (whether majority, concurring, or dissent) to use a neutral clinical term rather than trying to conform to what ever slang term some find favorable at the moment.

Among the high-school set, "gay" has now become a slur occupying much the same linguistic territory that "queer" once held, and for the same reason. "Homosexual," of course, has far too many syllables for today's youth.

"Homophobia," besides being a linguistic monstrosity, is inaccurate. The operative emotion is neither hate nor fear, but rather repugnance or disgust. Yep, we need a new word.

Humans have always disdained those who can be categorized as different, even if that catergorization is largely artificial (e.g. Hutu/Tutsi.) A category as fundamental and important as sexual orientation is not going to go away. Those who want homosexuality to be accepted as "normal" had best move to Candyland...it ain't gonna happen here.

Master Dick and Tony Ducks like their beef quite red and quaffed down with stiff belts of top-shelf bourbon I tell ya'! By God! Any man that can separate a Teal from a Mallard and drop it can with equal voracity separate the man from the issue(s) before the Bench. It is refreshing to see a Justice as a real man and not some zombie-like, cloistered, pallid creature with zippered mouth rarely seen and never heard from, outside of a few muttered Legal platititudes to stuffy groups of pompous people. Who knows - Tony Ducks may show up in this Blog some day. I hope he does, to rub shoulders with the old goesh and others and walk some on real earth.

Not to pile on here, but that Wiki sounds less than objective to me. People who have homophobia tend to hate rather than to fear? Even if it is defined as fear? Sounds like homophobiaphobia to me.

Also, whether or not gay behavior is Constitutionally protected, it is certainly not protected specifically by the First Amendment the way Christianity is, so your first post in this thread is just pointless.

Making an issue of the word "homosexual" here is just inventing evidence of hostility. If that's all you've got, give up.

But it's true. People who refuse to use the word "gay" are hostile towards gay people 99% of the time.

I'm not bothered by the word. It it's a great indicator of where people stand. If they're hostile towards gay people, I want to know that.

The Washington Times refuses to use the word gay without putting it in quotation marks. The same with World Net Daily. Those sites are 100% against gay rights.

I'm not talking about legal writing. How somebody can go five years (George Bush) while only using the word gay once is kind of strange, no? To not use that word, they are obviously making a deliberate decision to AVOID using the term. It's been in the vernacular for over 30 years.

It's very simple. These people don't believe that gay people exist. I forget who said it, but they believe that we're all sick heterosexuals waiting to be cured. Gay is an identity that they refuse to acknowledge. By insisting on using the term "homosexual" they are only acknowledging sex acts, i.e. we're just people who commit sinful acts.

If you want to disprove my point - then can you please point to one person who refuses to use the word gay, and only uses the word homoseuxal, who you would describe as NOT hostile to gay people?

Just one person please and then I'll admit I'm wrong.

I don't care about people who use gay and homosexual interchangably. Again - I'm talking about people who deliberately refuse to use the word gay.

As a side note - they have every right to do so. If they think the gay identity is sinful, and don't want to acknowlege it, that's their prerogative. But you can't then tell me that these people are not hostile towards gays. Of course they are! They think we're sinners - so why shouldn't they be hostile?????

I'm a Christian. I think homosexual acts are sinful and gayness (or whatever adjective is polite) is a sinful lifestyle. I also think staring after the pretty girl crossing the street is a sinful act. In short, I think you and I both commit sins every day, as a result of equally natural proclivities. None of this makes me hostile to you or to myself. My beliefs do not automatically render me a bigot, and the assumption that they do is itself a kind of bigotry that I hope you will retreat from.

Just curious. Do you really think that I shouldn't read anything into the fact that Bush only used the word gay once since he's been President? Do you really think that I shouldn't read anything into the fact that the Washington Times only uses the word gay with quotation marks? The same with World Net Daily?

All I'm doing is taking the religious right at face value. They readily acknowledge that they will not use the word gay.

"I never use the word "gay" when referring to homosexuals. There are many bright, exuberant, merry people in this world who are not sexual perverts."

http://www.bible.org/page.asp?page_id=1302

I'd bet a lot of money that Clarence Thomas and Alito have no problem using the word gay in a conversation, while Scalia refuses to. They all might vote the same when it comes to gay rights cases (we'll see with Alito), but I only get a sense of contempt for gay people from Scalia. It's not the decisions that bother me, it's the attitude.

You are entitled to your beliefs. I'll defend to the death your right to have them and speak about them publicly.

Now if I happened to think that Christianity is a sinful lifestyle, would you consider me to be anti-Christian? I would think that would be a valid conclusion. So it's perfectly reasonable for me to assume you're anti-gay, no? I mean - surely you're not pro-gay???

"I don't care about people who use gay and homosexual interchangably. Again - I'm talking about people who deliberately refuse to use the word gay."

But "gay" and "homosexual" are not interchangable terms. I will use the term gay to refer to any individual male homosexual, or any exclusively male group of homosexuals, just as I will use the term "lesbian" to refer to any individual female homosexual or exclusively female group of homosexuals. But I will not refer to you as a lesbian, because by definition, a lesbian is a female homosexual. If there is a gender-specific term for homosexuals of one gender, there must also be one for the other gender; thus, my contention is that, through overwhelming practise, the term "gay" refers predominantly and exclusively to male homosexuals. When the context supports a gender-specific term, I will use that; I know you to be male, and I think we're all very much aware of your sexual orientation at this point, so I would refer to you as being gay, rather than being homosexual. If I didn't know your gender, though, I would need to use a gender-neutral term, and I reject that "gay" either is or should be gender-neutral.

However, I would note that I think you're being overbroad in saying that I am "characterizing the complicated human issues in question as being about the 'right to bugger your fellow man'"; was the law at issue in Lawrence v. Texas a law against "the complicated human issues" of relationships and sexuality, or was it a prohibition upon certain actions?

Sodomy has traditionally been defined as oral and anal sex. It doesn't matter it a husband is performing such an act on his wife - the definition of such is still sodomy. Our laws explicitly defined oral sex as sodomy until after Bowers v. Hardwick.

Just curious, but do y'all really believe that the state has the right to tell you how to have sex with your spouse or partner? --------

On vacations:

Scalia should have gone on other vacations with other people if he wanted to act modestly and discretely. It was entirely predictable that it would cause a fuss if he vacationed with Cheney. SCOTUS justices know that POTUS and the justice department reglarly have cases come before the court.

He doesn't have to recuse - but it looks bad and he should know better then to vacation with the VP as a member of SCOTUS.

I disagree, and will not use it in that way. That's a product of a desire for precise and accurate language (a passion that I share with Scalia, incidentally; see A. Kozinski, My Pizza With Nino, 12 Cardozo L. Rev. 1587), rather than latent homophobia.

"But you used the term gay several times in the last paragraph. Surely you use it in everyday conversation."

Funnily enough, I don't use the terms "gay", "straight", "homosexual", "heterosexual", "lesbian" or any similar words in everyday conversation. They are not words which generally have relevance to any subject I'm interested in; indeed, a person's sexuality is a matter of supreme and complete indifference to me. My policy isn't "don't ask, don't tell", it is "won't ask, don't care". I don't want to know about your sex life, I don't care how you think it shapes your identity, and that goes whether you're lesbian, gay, bisexual or straight. I really don't care. My experience is that sexuality is a topic of conversation that simply does not exist in the day-to-day reality of most people who are not somehow involved with it professionally or who make a profession of it.

Moreover, as far as I'm concerned, if you represent your sexuality -- whether that is the swaggering braggadocio of the man-slut who has a different girl hanging off his arm every night or some complex question of sexual identity -- as being central to your identity (or worse yet, if it really is) you are a boring person. Sexuality cannot provide an answer to the really interesting questions in life -- what's your golf handicap? What is best practise for object-oriented code? What is an appropriate solution to the jurisdictional challenges posed by transnational entities such as the internet? And so on -- and it provides an inadequate basis for one's life. So absurdly irrelevant a question as the gender of your partner should not dominate your perspective.

But sexuality is relevant when cops are allowed to break into your home and arrest you for having sex. It is relevant when you're denied housing for being gay. It's relevant when you're fired from a job for being gay.

People can debate the legality of all of these items, but it's certainly not irrelevant if you happen to be gay.

If a lesbian adopts her partner's biological offspring, she should not have to worry about the child being confiscated from her by police if she happens to get pulled over for a minor traffic violation in Virginia. Which is exactly what would happen, based on the laws there today.

dtl: Have you given any thought to the possibility that the president might say "homosexual" because he sees the word "gay" as an insensitive slang term? I'm sure this is a big stretch for you, but hear me out.

Using my baby boomer parents as an example... if the subject came up, they would choose the word homosexual in a misguided attempt to be sensitive and PC.

When they hear the word "gay," they think first of teenagers using the word to call each other stupid, then of Jack McFarland-type characters. (Not that they have ever seen Will & Grace, but it's a good illustration of the stereotype.) Those images don't mesh with their sense of decorum, so they choose the "technical" term, having no idea that it might be offensive to an actual gay person. Probably because they don't know that they know any actually gay people. But they're certainly not trying to be mean.

To those interested in the Scalia/Cheney vacation: During his UConn lecture, the Justice also said that because of his close friendship with Cheney, he would recuse himself from any case in which the VP was personally involved.

He reasoned that if Cheney left office during the case, his name would be crossed out, a new name would be put on, and the case would go on- because it wasn't about Cheney personally. Thus the friendship was irrelevant to the recusal decision.

Ann: As you suspected, the justice made a point to say that "for the sake of argument," he accepts that "homosexual orgies relieve tension and should be encouraged." I guess that's a standard laugh line? It only got him a few nervous giggles at UConn.

Geoduck:"Sodomy has traditionally been defined as oral and anal sex. It doesn't matter it a husband is performing such an act on his wife - the definition of such is still sodomy."

Maybe so, but that was not what was at issue in Lawrence. The statute at issue in that case was Tex. Penal Code Ann. §21.06(a), which provided that a "person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex," emphasis added.

Geoduck, redux:"Just curious, but do y'all really believe that the state has the right to tell you how to have sex with your spouse or partner?"

That's not a question that I can answer as a general matter. There are fifty state constitutions in the United States; whether "the" state has the right to tell you how to have sex with your spouse or partner depends on whether the people have delegated so unwise a level of power to their state government. But certainly the United States Constitution does not foreclose the possibility that the people may be so foolish as to grant a state government that kind of power.

On a normative level, of course, I think that no state should be able to do so. A state constitution that permitted such a power should probably be (carefully) amended (and I do mean carefully - obviously the state has a compelling interest in what takes place between two adults in the privacy of their own home when, for example, what takes place is spousal abuse), and I would vote against a law that was invasive in such a manner. As would Justice Thomas, I would have voted, as a legislator, to repeal Tex. Penal Code Ann. §21.06(a), but that is irrelevant to the question of its constitutionlity.

The religious right are quite vocal that they will not use the term gay. Just do a Google and can read THEIR arguments for doing so.

Bush is not stupid. He has heard these same arguments. And he is cowtowing to the religious right by refusing to use the term.

Are there people out there who only use homosexual, because they think that's the proper term? Of course. But it is a very small percentage.

But can you imagine having gone five years without uttering the phrase "gay marriage"?

Astounding!

My brother-in-law refuses to use the term gay. And trust me, he's very anti-gay. He has scolded other members of my family if they use the word gay.

Again - these are subtle hints that you just pick up on if you're gay. I'm certain straight people have no idea about this. When I read a World Net Daily article and the word gay is placed in quotation marks, I know very well where the author is coming from. For a straight person, it will go right over their heads.

"Again - these are subtle hints that you just pick up on if you're gay. I'm certain straight people have no idea about this. When I read a World Net Daily article and the word gay is placed in quotation marks, I know very well where the author is coming from. For a straight person, it will go right over their heads."

Most of us got over being interested the "super secret club" aspect of being gay in our early 20s. The world hates all of us, for one reason or another, whether we're queers or Jews or rich or fat or guineas or originalists or whatever. Stop being such a delicate flower! Does it really cause you emotional pain when World Net Daily puts gay in quotation marks? Don't read that crap then! Grow a pair!

And I should add that I enjoy reading World Net Daily. I like to know how the other side thinks.

I don't get upset when they attack gay people. They have sincere beliefs.

But I pick up on their use of language, i.e. using the word "homosexual" instead of "gay". Only putting the word gay in exclamation points, etc. to determine which side they are on in the culture wars.

Everyone on this thread is saying that I should ignore those clues? Why? They are useful. If somebody wrote an article and constantly referred to "class struggle" and "the proletariats", would I be "hypersensitive" to assume the article is written by a Marxist???

I don't have to be a fan of Scalia. I am entitled to my opinion. I fail to see why this is so controversial. You don't have to agree with me. The world would be a boring place if you did.

Skimming over the comments, I'm a bit shocked that people are so hostile to downtownlad's point over the use of homosexual and gay. People, whether gay or straight, in professional contexts and personal contexts almost always use the terms "gay" or "gay and lesbian." No one takes offense at being called gay today. No one. "Gay" is the neutral term. Its not slang. Its the term that is used in the mainstream media, by gay rights organizations, and in court decisions. Use of "homosexual" as well as putting anything related to gays and lesbians in quotation marks is clinical and usually symbolic of the speaker's rejection of the legitimacy of the culture or person being referred to.

People can dispute whether Scalia's particular use of "homosexual" demostrates an anti-gay bias or whether this is an issue to get worked up over, but downtownlad is 100% correct in his point about the use of the terms gay and homosexual.

Who's emotional? I think Scalia is not too fond of gay people. As is his right, I might add. I might be wrong about that assumption. I welcome any evidence to the contrary. I also get annoyed when Scalia insists that he is somehow above politics and that the rest of the justices are not.

First, I think you are trivializing the difference between checking passports and making sure that contraband isn't being shipped into the US, and opening and reading private mail. I think (admittedly unresearched)that many of the Framers would have been astonished to know that the goverment thought it could legitimately intercept and peruse private mail without prior notice to the parties, and without a warrant.

Second: the fact the Justice Thomas explicitly takes that position is one reason why I find his Lawrence dissent far less offensive than Your Hero's. Scalia's dissent really does drip with contempt for gay people...the persistent use of the word "sodomy," for instance, which is loaded with overtones of religious disapprobration, is just one example of it. Likewise, references to the "homosexual agenda," which sounded like so much conspiracy theory, or conclusory statements that if homosexuality must be protected, than so must bestiality be protected. This kind of tone really does have an impact, and it was leads people to suspect that the Justice is less than impartial on this issue.

Note that none of that is to say that I don't sometimes like Scalia -- I'm a fan of a fair bit of his administrative law and separation of powers jurisprudence. I really like his Morrison dissent, for instance. But in cases like these, he does tend to display a hostility towards litigants that ill-befits his power and authority. It doesn't take much to blunt this -- Thomas was able to do so in a short paragraph. But at the end of his opinion, I was left with the firm conclusion that Scalia would really prefer that these laws remain on the books.

(p.s. -- please don't take the above as an approval of the majority's theory in Lawrence, which I think was terribly reasoned...I think Justice O'Connor was halfway correct to look to the EP clause -- what she failed to do is properly apply heightened scrutiny...)

The modern terminology of "sodomy" has been re-arranged for today's politics. (In particular, the politics of the religious right.)

The re-definition of language reveals hypocrisy and willingness to have amnesia about the actual definition of sodomy.

Sodomy refered to oral or anal sex between two people. It was often used to refer to hetero-sexual non-procreative sex. (ie- coitus.) See, for example, how Puritans in Colonial Mass. defined sodomy. This definition was constant up through Bowers v. Hardwick - the 1986 sodomy case in GA. These most recent sodomy cases began challenging laws that prevented heterosexual and homosexual acts. (And there were no exceptions for married couples.)

Not surprisingly, many people do not want to hear about how oral sex and anal sex between hetero-sexuals was considered to be not just a sin, but illegal for many years in America.

The religious right sees that this usual definition of sodomy would not be politically popular.

I find the willingness to pass laws that criminalize sodomy entirely dependent on a new definition of sodomy that is restricted to gay men.

These activists will almost never insist on the bibilical definition of sodomy or the traditional definition of sodomy, which includes heterosexual oral sex.

In my personal opinion, American liberty (the constitution) prevents the state from criminalizing oral sex or anal sex(sodomy) between two consenting adults.

However, if the right to choose how to have sex can be determined by the state this presents a very different view of American liberty.

Pro-natalist activists could argue that adults should only have pro-crative sex (coitus) and that it's a crime to release sperm anywhere that couldn't result in a child. The state could argue that it has an interest in promoting birth rates. Pro-natalist activists could outlaw the use of birth control.

I believe that American liberty prevents the possibility of this type of law.

Regarding the use of "gay" vs. "homosexual" in legal writing, I did some simple database searches on Westlaw. I'll report the results for the past 10 years first and the past 3 years second.

The term "gay rights" was used in 2,568 / 895 documents in the LAWREV-PRO database of law review articles compared to 492 / 139 documents that use the term "homosexual rights".

Doing the same searches in the ALLCASES database (all federal and state court decisions), the term "gay rights" is used in 99 / 59 cases, compared to "homosexual rights" which is used 33 /11 times.

I did the same searches in the New York Times. "Gay rights" came up in 1,917 / 759 articles, while "homosexual rights" came up in 60 / 9 articles.

I don't have access to an all-newspapers database, so I also did a search in an explicitly conservative newspaper, the Washington Times. "Gay rights" came up in 327 / 66 articles, while "homosexual rights" came up in 724 / 281 articles.

My unscientific analysis doesn't take into consideration lots of things I have and have not thought of that might skew these results, but it does suggest that (1) "gay" is widely used even in more sterile legal writing, (2) Prof. Althouse's claim that "homosexual" may be used more frequently in legal writing than in the mainstream media has some credence, and (3) "homosexual" is used much more often in conservative media.

I think some people may use the term "homosexual" today because they genuinely aren't sure what an appropriate term is, while others use it very deliberately (like pro-choice people calling their opponents anti-choice or pro-life people calling their opponents anti-life). I suspect many people who genuinely don't know if its appropriate to use the term gay are either personally very uncomforable with homosexuality or don't have many gay friends and acquaintances.

JOE: "I suspect many people who genuinely don't know if its appropriate to use the term gay are either personally very uncomforable with homosexuality or don't have many gay friends and acquaintances."

Keep in mind that a lot of these people are ordinary Americans who can be influenced in favor of gay rights. Don't alienate them with shaming and coming on too strong. I really believe that ordinary Americans may have some negative ideas but when it comes down to hurting an individual don't have the heart for it. These are important allies. Be kind to them. They may respond. And it's worth taking the high ground for its own sake.

Perhaps I'm a case-in-point. I started out being in favor of same-sex marriage but I changed my mind after getting fed up with people telling me I have to be in favor of same-sex marriage because it is in value exactly equal to heterosexual marriage. Why should I have to apologize for a mild sentimental preference?

If I were a younger me, I'd make the effort to be dispassionate about the whole thing but those days are gone.

So, here's the deal I'm offering to proponents of same sex marriage: I'll change my mind back if you all stop acting like I have to agree with you exactly or else I'm a bigot.

Believe it or not, I am AM kind to them. You would be surprised at how far I have gone to accomodate my family's bigotry (there is no other way to describe it - but bigotry). I do not bring up the subject of my being gay. I mention zero details of my personal life, etc. Their loss, if you ask me. And my opinion of them has sunk quite a bit. But I am "kind" to them, even though they don't return the favor. But a blog is different. Everyone here is pretty well versed on the subject. If I can't express my real opinions here, where can I discuss them?

My point was not to shame people for using the term homosexual rather than gay. Its a perfectly legitimate term and people can and do use it in many contexts. My point was two-fold. First, many people very deliberately choose to use the term homosexual to make a point that they personally don't approve of gay culture or identity. I think Scalia falls into this group and this was downtownlad's point. I don't think this group cares if I shame them or not.

Second, people who use the term homosexual as a default or neutral term would probably learn quickly not to if they were using it with any frequency or using it around gay people or friends of gay people. Its not my intent to shame this second group. However, I think on the whole, people who don't know if its ok to use the term gay are less likely to identify as gay-friendly.

This isn't about taking personal offense at being called gay or queer or homo or whatever. This is about trying to discern a speaker's perspective on the basis of their word choice. For a related example, the term "queer" has a more particular meaning that suggests the speaker is gay-friendly, academic, or using it as an epitath (which is generally more readily understood than using gay or homosexual).

As far as being kind and inclusive to people who can be persuaded to be gay-friendly if they aren't already, I am very careful to be kind and understanding and have learned great faith in people's inclination to be kind in return even when they may be uncomfortable. In my small town conservative upstate New York world, I was blown away by the kindness of ordinary Americans, many of whom are Catholic, Republican, self-identified conservative, etc., who eagerly came to my wedding last year. It was an overwhelmingly positive response from many people I didn't know very well and renewed my faith that the anti-gay rhetoric in the politics of 2004 was just that--rhetoric--and will pass.

I think I do and have taken the "high ground" and if my comments have indicated otherwise, I think that's probably a function of this medium of communication, which tends to the adversarial.

I'll just add that the article downtownlad cited as analysing the justices' use of gay and homosexual (and black, African-American and Negro) is actually quite interesting, probably a better statistical analysis than I provided, and not very long.http://www.danpinello.com/Scalia.htm

Keep in mind that a lot of these people are ordinary Americans who can be influenced in favor of gay rights. Don't alienate them with shaming and coming on too strong. I really believe that ordinary Americans may have some negative ideas but when it comes down to hurting an individual don't have the heart for it. These are important allies. Be kind to them. They may respond. And it's worth taking the high ground for its own sake.

This is really pretty talk. You know what is going to lose these religious, regular-folk voters?

Over-the-top behavior, and mainstream presentation of it. That is, Althouse sounds pretty above, but she doesn't consistently advocate for respect.

She is the first one giggling at Jesus pooping out turds on South Park (free speech!) during Holy Week nonetheless. How is this taking the high ground, and not insulting someone's values?

How does snapping drag queen photos at a public march, then putting them up here, help the cause in not threatining people's religious values? It doesn't.

Putting up stories about a small group protesting a speech, wearing "I kiss boys" shirts? Nothing wrong with that, but doesn't it make folks assume that all gays are fighting for is the right to "shock"?

Again, I like these pretty words. Unfortunately, I don't think the overall tv environment and blog value added entertainment are doing much to encourage respect. When these folks look to fight back against such culture that demeans their own, the backlash won't fall on the producers of such shows. It will fall on the regular gay folks out there, who don't go out of their way to demean non-protected religions.

Catholics vote. They don't mix in your enlightened culture much, but they do get to hear plenty about it, and still believe their own ways are better than letting adolescent males run the pack.

When gay rights issues lose at the polls, don't blame the quiet homosexuals/gays for standing up for themselves; blame the shock culture that respects nothing. Then wonder whether pretty words are said in sincerity (heh) or as a way to boost numbers and bring in the bucks. You may just get lost on that highroad, first time you get there...

And Scalia will go down in history, unvarnished, for the juror he is. Just like our current president will be dealt with honestly, in case we don't succeed in making the world safe for Israel.

Bruce: there is the problem of determining whether or not "Gay" does or does not include Lesbians, Transexuals, Pedophiles, etc. Sometimes it does, and sometimes it doesn't, depending on the situation.I'm not sure what the argument is that the term "gay" includes pedophiles. I don't think pedophilia can reasonably be classified as gay or straight, but there is a much higher incidence of man-on-girl "straight" pedophilia than so-called "gay" pedophilia. This kind of conflation of homosexuality and pedophilia seems designed simply to slander the gay rights movement by suggesting it is complicit with child molestation.

It also makes me wonder why Prof. Althouse read through these comments and singled me out for a suggestion that I should try taking the high ground.

I agree with Joe's previous comment - it seems ludicrous to me to suggest that pedophilia is encompassed within the term homosexuality, or its gender-specific derivations. To me, homosexuality means gays, lesbians and bisexuals. It does not include - and it is ridiculous to try and make it include - completely different (and contrastingly deviant) classes such as pedophiles and transsexuals.